Introduction to the Concept of Alternative Dispute Resolution

 Synopsis

    Introduction

    Object

    Origin and Development

            Pre independence

            Post Independence

    Rational behind Alterative Dispute Resolution

    Technique of Alternative Dispute Resolution

            Arbitration
            Mediation
            Conciliation
            Negotiation
            Plea bargaining
            Lok Adalat
            Section 89 of CPC

    Conclusion

     INTRODUCTION

People can now contact each other and settle business deals and disputes when they are sitting at the opposite ends of the world. Most people no longer have the time to go and file papers at the courts and then wait long periods for a hearing. We are rapidly approaching a stage where litigation is being replaced with alternative dispute resolution (ADR), due to the inefficiencies and drawbacks of litigation. India hasn’t quite reached a stage where litigation has been completely displaced by ADR methods, but the legal system is beginning to see the benefits of ADR. This article shall be helpful to give you an overview of the ADR methods and how it is beneficial

    Objective

The Primary goal of ADR is the resolution of disputes without the need for litigation.

Most Alternative Dispute Resolution techniques are entered into voluntarily.

The goal of the ADR is not afifty-fiftyy split, In fact, most ADR proceedings do result in some sort of compromise reached through a structured negotiation process. The satisfaction rate is a product not only of the final decision but of the fairness of the process itself.

Identify and eliminate barriers to using or attempting ADR through outreach and awareness education at all echelons of each Army command.

ADR enjoys a number of advantages over litigation. Although cost saving is probably the most frequently- mentioned advantage another goal can be just as important or even more important depending on the dispute.

The parties can agree to resolve in a single procedure a dispute involving intellectual property that is protected in a number of different countries by ADR, thereby avoiding the expense and complexity of multi-jurisdictional litigation, and the risk of inconsistent results.

    Origin and Development

To trace the roots of ADR, we should look at our anthropological and sociological studies to have an idea about how early humans may have resolved disputes without the use of fists, clubs, or spear-arrows. Many of the following ways are quite different from the modern techniques of dispute resolution. Nevertheless, these modern techniques have come into existence because of these primitive ways.
In India, the law and practice of private and transactional commercial disputes without court intervention can be dated back to ancient times. Arbitration or mediation as an alternative to dispute resolution by municipal courts has been prevalent in India from Vedic times.
Pre independence

This was as per the deed of right Mughal Emperor Jehangir granted to them. Their first major interference with the internal politics of India was when they supported Mir Kasim, a minister of Bengal, militarily to sabotage Siraj-ud-Daula, the Nawab. On 23rd June, 1757, the Nawab was defeated by a joint military action of Robert Clive's troops and those of Mir Kasim in a battle at Plassey.

And this was the turning point where the British formally entered the political arena of India and began to play a direct role in the administrative supremacy. They managed to bring under their administrative control most of the princely states of India either by direct annexation using force or by giving military support. They brought Punjab also under their control in 1849

Judicial administration was changed during British period. The current judicial system of India is very close to the judicial administration as prevailed during British period. The traditional institutions worked as recognised system of administration of justice and not merely alternatives to the formal justice system established by the British. The two systems continued to operate parallel to each other.[5] The system of alternate dispute redressal was found not only as a convenient procedure but was also seen as a politically safe and significant in the days of British Raj.

            Post Independence

By the enactment of the Legal Services Authorities Act, 1987, which came into force from November 9, 1995, the institution of Lok Adalats received statutory status. To keep pace with the globalization of commerce the old Arbitration Act of 1940 is replaced by the new Arbitration and Conciliation Act, 1996

Settlement of matters concerning the family has been provided under Order XXXII (A) of the Code of Civil Procedure, 1908 by amendment in 1976. Provisions for making efforts for reconciliation under Sections 23 (2) and 23 (3) of the Hindu Marriage Act, 1955 as also under Section 34 (3) of the Special Marriage Act, 1954 are made.


Family Courts Act was enacted in 1984. Under Family Courts Act, 1984 it is the duty of family court to make efforts for settlement between the parties. Introduction of section 89 and Order X Rule 1A, 1B and 1C by way of an Amendment[8] in the Code of Civil Procedure, 1908 is a radical advancement made by the Indian Legislature in embracing the system of "Court Referred Alternative Disputes Resolution".

    Rational behind Alterative Dispute Resolution

For many types of disputes, arbitration offers a better alternative to litigation. Its advantages include:

   Flexibility and control. Parties can set terms in their arbitration contract governing how the process will work. This includes establishing rules regarding discovery, hearings, time limitations and other matters. In addition, parties can schedule hearings and deadlines to accommodate their needs.

   Speed. According to statistics of the American Arbitration Association, on average, U.S. District Court cases took 12-16 months longer to get to trial than cases using arbitration.

   Low cost. Less time spent to resolve a dispute means lower costs for attorneys’ fees. In addition, discovery is much more limited in arbitration, and appeals are very limited, so those costs are all saved.

   Simplified rules of evidence and discovery. Typically, there are limits on the nature and scope of discovery and time limits on how long the process can take. Issues are handled through phone calls rather than multiple hearings, subpoenas, depositions, interrogatories and the like. And, the strict rules of evidence don’t apply.

   Privacy and confidentiality. Arbitrations are private with only designated parties in attendance and the proceedings are strictly confidential. In contrast, litigation is open to be public.

   Arbitrator selection. Parties can choose an arbitrator with subject matter expertise as opposed to being assigned a judge randomly. This is particularly important in complex cases requiring specialized knowledge.

Finality. Appeal rights are very limited in arbitration, so disputes are finally resolved more quickly.

    Technique of Alternative Dispute Resolution

Below is a description of various ADR techniques and the agencies which utilize them. Agencies are not limited to using only one technique in their program; rather, they are encouraged to experiment with these techniques by using various methods in combination to reach effective resolutions

.

            Arbitration

It is a procedure in which the dispute is submitted to an arbitral tribunal which makes an award in respect of the dispute. The award is binding on the parties.

It may be noted that the present trends all over the world is the redressal of commercial disputes through and not litigation. The attitude of legal fraternity including judges, lawyers and arbitrations, is changing towards preference for arbitration process instead of resorting to a law court.

            Mediation

Mediation is presently the most popular form of ADR in use by agencies in employment-related disputes. Mediation is the intervention in a dispute or negotiation of an acceptable impartial and neutral third party, who has no decision-making authority. The objective of this intervention is to assist the parties in reaching a mutually-acceptable resolution of the issues in dispute.

A mediator makes primarily procedural suggestions regarding how parties can reach agreement. Occasionally, a mediator may suggest some substantive options as a means of encouraging the parties to expand the range of possible resolutions under consideration. A mediator often works with the parties individually, in caucuses, to explore acceptable resolution options or to develop proposals that might move the parties closer to resolution.

            Conciliation

    Conciliation means settling disputes without litigation. It is an informal process in which conciliator i.e. third party tries to bring the disputants to agreement. He overcomes the disputable issues by lowering the tension, improvement in communication, interpreting issues, providing technical assistance, exploring potential solutions and bringing the negotiated settlement before the parties. Conciliator adopts his own method to resolve the dispute and the steps taken by him are not strict and legal. There is no need of agreement like arbitration agreement. The acceptance of settlement is needed by both of the parties.

   Arbitration and Conciliation Act, 1996 deals with conciliation. it is a voluntary proceeding where parties in dispute agree to resolve their dispute through conciliation. It is a flexible process which allows the parties to decide the time and place for conciliation, structure, content and terms of negotiations. In Conciliation, the conciliators are trained and qualified neutral person who help the conflicting parties to make them understand the issues in dispute and their interest to reach mutually accepted agreements.

            Negotiation

 Negotiation has been defined as any form of direct or indirect communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between them.

Footnote

Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future relationship between two or more parties.

Negotiation has also been characterized as the “preeminent mode of dispute resolution”

Footnote which is hardly surprising given its presence in virtually all aspects of everyday life, whether at the individual, institutional, national or global levels. Each negotiation is unique, differing from one another in terms of subject matter, the number of participants and the process used.        Given the presence of negotiation in daily life, it is not surprising to find that negotiation            can also be applied within the context of other dispute resolution processes, such as                mediation and litigation settlement conferences.

             Lok Adalat

Lok Adalat is one of the alternative dispute redressal mechanisms, it is a forum where disputes/cases pending in the court of law or at pre-litigation stage are settled/ compromised amicably. Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987. Under the said Act, the award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law.

There is no court fee payable when a matter is filed in a Lok Adalat. If a matter pending in the court of law is referred to the Lok Adalat and is settled subsequently, the court fee originally paid in the court on the complaints/petition is also refunded back to the parties. The persons deciding the cases in the Lok Adalats are called the Members of the Lok Adalats, they have the role of statutory conciliators only and do not have any judicial role; therefore they can only persuade the parties to come to a conclusion for settling the dispute outside the court in the Lok Adalat and shall not pressurize or coerce any of the parties to compromise or settle cases or matters either directly or indirectly.

            Section 89 of CPC

                  Settlement of disputes outside the Court.

(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for:--

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat: or

(d) mediation.


(2) Were a dispute has been referred--
(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall .apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

    Conclusion

There are many other dispute resolution methods, like med-arb, mini trial, summary jury trial etc. But arbitration, mediation and Lok Adalats etc are the most commonly used techniques of ADR in India. Throughout the world, ADR has been slowly becoming the favored choice for parties, but India still relies a lot on litigation. However, with the development of these ADR methods, and in an effort to improve access to justice, ADR is being seen as a necessity. Legal recognition should be given to all ADR methods including negotiation as they are viable and convenient., and it would help to ease the burden of the courts.